Defence in offences related to the running of companies — misuse of company assets, fraudulent management, embezzlement, breach of trust, corporate forgery — for directors, shareholders and officers.
A significant part of business criminal law concerns the relationship between those who run a company and its assets. Company law and the Criminal Code criminalise a range of acts by which directors, shareholders or officers may harm the company, the other shareholders or the creditors — grouped, in the Criminal Code, under offences against assets through breach of trust.
The particularity of these files is that they most often concern decisions taken in the exercise of a management function. Yet the line between a management decision — even a disadvantageous one — and a criminal act is, here, thin and frequently disputed. The prosecution tends to read retrospectively an unsuccessful operation as an intentional abuse, although it may lack the very subjective element that defines the offence.
The defence starts from reconstructing the real context of the decision: what was pursued, what information existed at the time, what was the economic rationale. Understanding how the running of a company actually works — beyond the criminal rule — is decisive here.
The bad-faith use of the company's assets or credit for one's own benefit or that of another, contrary to the company's interest. The distinction from a legitimate business decision is the heart of the defence.
Causing loss through the bad-faith management of another's assets. Bad faith must be proven — not a mere management mistake.
The appropriation, use or trafficking, by the person managing them, of the company's money or assets. The defence concerns the reality of the operation and its economic justification.
The wrongful appropriation or disposal of an entrusted asset. Frequently invoked in disputes between shareholders or in management relationships.
Documents drawn up for the formation or amendment of the company, resolutions, records — the defence concerns the reality of the operation and the intent to produce legal consequences.
Many corporate charges arise against the background of a dispute between shareholders. The defence concerns the distinction between a civil-commercial dispute and a genuine criminal act.
The dividing line, in all of them, is intent and bad faith — what separates the director who took a business decision from the one who defrauded the company or the partners.
The most important line of defence in corporate offences is the distinction between exercising — even imperfectly — a management function and a criminal act. The law recognises that a business decision involves risk, and an unfavourable outcome does not, retroactively, turn the decision into a crime.
Demonstrating the economic reasoning behind a contested decision, the context in which it was taken and the good faith of the person who took it is frequently how a corporate charge is rebutted. Here, real experience in running businesses and an understanding of economic mechanisms matter as much as command of the criminal rule.
It is a frequent situation: a corporate dispute — over dividends, management decisions, the withdrawal of a shareholder — is turned into a criminal complaint for breach of trust, embezzlement or fraudulent management. Many such disputes in fact belong to civil and commercial law, not criminal law.
The defence consists of demonstrating the real nature of the dispute and the absence of the elements of an offence — in particular bad faith and intent.
Not automatically. Misuse of company assets presupposes bad-faith use, contrary to the company's interest, for one's own benefit or that of another. An expense or operation with a real economic justification, in the company's interest, does not meet this requirement — even if, viewed in isolation, it may seem questionable.
Documenting the economic rationale of the operation is how such a charge is rebutted.
Causing loss through the bad-faith management of another's assets. The key word is bad faith: the intent to cause harm must be proven, not just the fact that a decision produced a loss. Management that was wrong, but in good faith, is not fraudulent management.
It is precisely this distinction — between a management error and intentional fraud — that is the ground of the defence.
Yes. The criminal liability of the legal person is distinct from that of the individual. A company can be held criminally liable for acts committed in its interest or on its behalf, with its own sanctions. The defence must manage both levels — the director's and the company's.
An early assessment establishes whether the act alleged is a business decision or a genuine offence, whether the dispute belongs to criminal or commercial law, and what the defence is built on.